Lawsuit Lingers Six Years After Elian Gonzalez Raid

ATLANTA – Six years after the government raid to seize Elian Gonzalez and return him to his father, supporters of the Cuban boy continue to press their claims that federal agents used excessive force in seizing him.

Oral arguments were heard Wednesday before the 11th U.S. Circuit Court of Appeals in an amended lawsuit against the government.

The suit was filed by more than 90 people who say they were injured by a type of tear gas used by immigration agents who removed then-6-year-old Elian from his relatives' Miami home on April 22, 2000.

An earlier lawsuit against former Attorney General Janet Reno was rejected by the federal appeals court in Atlanta on the grounds that she had immunity from damages. This suit, based on similar facts, only names the United States and has nearly twice as many plaintiffs as the previous one.

A lower court in Florida rejected the amended lawsuit in part because some of the plaintiffs did not list how much they were seeking in damages for personal injuries and also on the basis that it was reasonable for agents to use the tear gas. The plaintiffs, each seeking $250,000 in damages, then appealed to the Atlanta court.

It could be several months before a decision is reached.

Judicial Watch, a legal group that argued the amended lawsuit on behalf of the plaintiffs, says the rules the immigration agents were supposed to follow prohibited the tear gas used in the raid.

"The raid was violent and over-the-top, and a lower court got it wrong," said the group's president, Tom Fitton, by telephone.

The government argues that chemical agents were used only to the extent necessary to prevent protesters from interfering. It also argues that the relevant issue is whether the use of force was reasonable under the circumstances.

"Plainly it was," Justice Department lawyers wrote.

The plaintiffs include supporters of Elian who were outside the home and neighbors who were sleeping at the time of the raid.

Among them is Donato Dalrymple, who was on a fishing trip with his cousin on Thanksgiving 1999 when they found and rescued Elian, who had survived a shipwreck that killed his mother and others fleeing Cuba.

The plaintiffs have been seeking compensatory damages for assault and battery, false imprisonment and intentional infliction of emotional distress.